A 9/11 prosecutor asked the judge Friday to set a provisional trial date of June 2018 for the capital conspiracy trial of the five men accused of plotting the Sept. 11, 2001 terror attacks.
Defense attorneys then reeled off a raft of obstacles to that date — from huge amounts of evidence they seek to a wobbly war court infrastructure — when, as if to prove the point, a tropical downpour blew in.
Rain pounded the metal roof at Camp Justice, drowning out legal arguments. The judge had already declared court space inadequate, and said it probably was too early to set a date. So he abruptly recessed for lunch.
“God took a side,” declared lawyer David Nevin, the death-penalty defense attorney for the alleged 9/11 mastermind Khalid Sheik Mohammed.
Earlier, federal prosecutor Ed Ryan asked the judge to set a series of deadlines “in this journey to ultimately get to a trial date.” Under that scenario, jury selection would start in June 2018. Ryan offered some metrics to suggest they’d be ready: Prosecutors had provided 365,000 pages to the lawyers for the five alleged terrorists, he said, including hotel, immigration, Federal Aviation Administration and Guantánamo health records.
Mohammed and four alleged accomplices are accused of orchestrating the 9/11 hijackings that killed 2,976 people in New York, Pennsylvania and at the Pentagon. They got to Guantánamo after years in the CIA’s secret prison network where they were waterboarded, kept nude, strung up by shackles, beaten, humiliated and hidden from the International Red Cross and attorneys.
Ryan said the lawyers already got 4,700 pages about their clients’ spy agency detention — and would get a total of 13,000 by Sept. 30 — all the prosecution believed they deserved to mount a capital case defense.
To which another Mohammed lawyer, Gary Sowards, argued that was a fraction of the necessary material from “the largest known government conspiracy in the history of the United States” — when “government actors” violated “domestic and international law in the use of the Black Sites.”
The so-called Senate Torture Report on the CIA prison program reviewed 6 million documents, he said.
At their capture in 2003 and 2004, the United States “chose to torture the defendants” rather than take them to an existing U.S. court, Sowards said. His client Mohammed “was held incommunicado, interrogated and tortured in the Black Sites,” the U.S. subjected him to “133 mock executions” and then in 2006 announced he was at Guantánamo Bay.
Mohammed was captured in Pakistan in March 2003 and arraigned in this case on May 5, 2012. So, Sowards said, “the government already had a nine-year head start on the prosecution of him.”
Sowards said defense lawyers would not be ready. Still undecided, he noted, was a bid to throw out the case, or at least the prosecutors and judge, over their role in the destruction of the last intact CIA Black Site prison at a time when defense lawyers believed it was under a court protection order.
Also Friday, a lawyer for Mohammed’s nephew asked the judge to order the government to give him blueprints and details about “the most secret prison in the world” — Guantanamo’s Camp 7 prison, holding 15 former CIA captives.
For a time, attorney Jay Connell said “CIA had operational control” of it.
He wants to know when, and what it was like in his bid to exclude from the trial any confessions his client, Ammar al Baluchi, gave FBI agents soon after the CIA brought him here in September 2006, and before he saw a lawyer.
Sowards also made clear that defense lawyers intended to seek access to CIA agents who worked at the agency’s now-defunct overseas prison network. An Air Force judge has ordered two interrogators and two senior CIA officials to testify in the USS Cole death penalty case, and the chief prosecutor, Army Brig. Gen. Mark Martins, said after court Friday evening that his side would not be appealing that order.
Defense lawyers in the Sept. 11 case are currently awaiting summaries of top secret, national security information about the prison network. Prosecutors created the summaries and judge Army Col. James Pohl is in the process of evaluating them.
But, Sowards said, what truly happened to his client “reside in the memories of his captors.”
If they are convicted, the defense lawyers say they want to show the eventual jury of U.S. military officers why the men accused of the worst U.S. terror attack in history ought not or need not be executed. One factor, Sowards said, was Mohammed’s “willingness to endure and tolerate some of the most horrific treatment recorded,” including “133 mock executions.”
Sowards said the accused 9/11 mastermind invoked his “religious piety and reliance on God to survive the ordeal. That would constitute significant mitigation.”
Earlier, prosecutor Clay Trivett said his side did not intend to offer evidence of the captives’ behavior at Guantánamo in their quest to have them executed. Rather, he said, they should die because “they were principals in an attack that killed 2,976 people.”
Pohl, the judge, had already declared his current disinterest in setting a date for trial. First, prosecutors need to provide defense attorneys more evidence. Then, he acknowledged Friday, the defense lawyers will need time to investigate.
Pohl instead said Guantánamo was not ready to hold the trial. The war court compound at Camp Justice has just one functioning court, he disclosed. And the USS Cole case judge is apparently closer to trial.
With another terror trial in the works, the judge said, he could hold the 9/11 trial from 7 p.m. to midnight. But that would detract from “the seriousness of the issue.”
Pohl offered that he has held military trials in combat zones before, in a tent, but declared that inappropriate too at this base of 5,500 residents. Beyond the prison zone and war court compound, Guantánamo functions like small-town America — with a seaport, public school system for sailors’ kids, drive-thru McDonald’s and bowling alley.
“There isn’t sufficient infrastructure to try multiple cases at the same time,” Pohl announced, urging the government to devote “money and construction” to the problem.
Pohl is chief of the war court judiciary. But Ryan, the prosecutor, advised not to worry. Set a date, he said, “and everything else will have to take care of itself.”
Buffalo, N.Y., based criminal defense counsel Jim Harrington called the war court compound too crude. Sure, he said, veteran death-penalty defenders, the judge and his staff all live in suite-like guest quarters or suburban-style townhouses. But the support staff, junior lawyers and paralegals, bivouac in “metal boxes,” a trailer park adjacent to the court that Harrington says causes him to worry for their mental and physical health in month after month of trial.
Chicago-based defense lawyer Cheryl Bormann called work space a problem too. Because it’s a national security case, she said, all classified work is carried out in cramped, metal box-like eaves-drop proof trailers. She complained of a vacuum in trial-preparation evidence and insufficient work space.
Then the rain began, drowning out her argument.
Oct. 16, 2016 file footage of downpour at Camp Justice